OUTLINE

The Government
will move amendments to the Road Safety Remuneration Bill 2011 (the
Bill). The main amendments would amend Part 3 of the Bill
relating to approval of certain collective agreements involving
contractor drivers. These amendments will:

·
consistent with the concurrent operation of laws regulating
owner-drivers in New South Wales, Victoria and Western Australia,
make clear that collective agreements entered into by contract
drivers under these State laws are not road transport agreements
for the purposes of Part 3 of the Bill;

·
enable the regulations to prescribe a code of conduct to facilitate
the effective and efficient collective bargaining for road
transport collective agreements; and

·
allow certain conduct by contractor drivers and their hirers to be
exempt from the operation of the Competition and Consumer Act
2010 (the Competition and Consumer Act) . The
effect of these amendments will be to enable contractor drivers and
hirers to collectively bargain and enter into approved collective
agreements without breaching the Competition and Consumer
Act.

In addition,
the amendments would:

·
ensure the same standing for registered employer organisations as
it does for registered employee organisations;

·
provide time limits for when application can be made to deal with a
dispute arising from a dismissal or contract termination;
and

·
make a number of technical amendments which are consequential on
the changes to Part 3 and which correct editorial errors or minor
omissions.

FINANCIAL IMPACT STATEMENT

The
measures proposed in this Bill are budget neutral.

NOTES ON AMENDMENTS

1.
In these notes on amendments, the following abbreviations are
used:

the Bill

Road Safety Remuneration Bill 2011

Tribunal

Road Safety Remuneration Tribunal

Competition and Consumer Act

Competition and Consumer Act
2010

Amendment 1 - Clause 4, page 3 (line 4)

1)
This item would include a new definition of ‘applicable
services’ by reference to subclause 33(1) - see
amendment 24.

Amendment 2
- Clause 4, page 3 (after line 4)

2)
This item would include a new definition for
‘approval-pending’ by reference to subclause 37A(4)
- see amendment 40.

Amendment 3
- Clause 4, page 3 (after line 4)

3)
This item would include a new definition for ‘approved road
transport collective agreement’. The amendments to Part
3 of the Bill will provide that road transport collective
agreements are to be approved by the Tribunal. The Bill, as
introduced, provided that the Tribunal was to grant safe
remuneration approvals in respect of road transport collective
agreements.

Amendment 4
- Clause 4, page 3 (after line 28)

4)
This item would include a new definition for ‘contractor
driver’. This is a technical amendment. The new
definition of ‘contractor driver’ will replace the
references to ‘independent contractor road transport
drivers’, ‘independent contractor’ and
‘road transport driver who is an independent
contractor’.

Amendment
5- Clause 4, page 4 (after line 10)

5)
This item would amend the definition of ‘enforceable
instrument’ to reflect that approvals of road transport
collective agreements will replace safe remuneration approvals.

Amendment 6
- Clause 4, page 4 (after line 24)

6)
This item would clarify that the term ‘independent
contractor’ is not confined to an individual. This
reflects that, under the Bill, road transport drivers who are
independent contractors may operate through corporate structures
- see clause 5 of the Bill.

Amendment 7
- Clause 4, page 4 (after line 30)

7)
This item would include a definition for
‘lawyer’. The term is used in clauses 69, 91 and
113 of the Bill.

Amendment 8 - Clause 4, page 5
(line 8)

Amendment 9 - Clause 4, page 5
(line 9)

Amendment
10 - Clause 4, page 5 (line 23)

8)
These items would make minor technical changes consequential on the
amendments made by amendment 24.

Amendment
11 - Clause 4, page 6 (lines 16 and 17)

9)
This item would delete the definition of ‘safe remuneration
approval’. The Bill as introduced would have required
the Tribunal to provide safe remuneration approvals in respect of
road transport collective agreements. In effect this would
have meant that the Tribunal would only have approved those parts
of a road transport collective agreement that contained provisions
about remuneration and related conditions. Under the proposed
amendments to Part 3 road transport collective agreements in their
entirety will be approved by the Tribunal - see Amendment
22-3, 25, 27-28, 30, 32-35, 37-39 41-45. In considering an
agreement, the Tribunal may have regard to whether the benefit of
approving the agreement would outweigh the detriment to the public
constituted by any lessening of competition that would or could
result if the agreement were approved. These amendments
clarify the Tribunal’s role in approving road transport
collective agreements by requiring the Tribunal to have regard to
the entire road transport collective agreement when considering
whether or not to approve the agreement.

10)
These items would make technical amendments, substituting the term
‘contractor driver’ for ‘road transport driver
who is an independent contractor’.

Amendment 14 - Clause 19, page 17 (lines 18 to 20)

Amendment 15 - clause 19, page 17
(line 21)

11)
These amendments would allow all registered organisations, and not
just registered employee associations, to apply for a road safety
remuneration order on behalf of its members.

Amendment
17 - Clause 27, page 23 (line 6)

12)
This item would amend clause 27 to make clear that if there is a
series of commencement dates, the expiry date of the road safety
remuneration order must not be later than 4 years after the
earliest of those dates.

Amendment 18 - Clause 31, page 24
(line 8)

Amendment
19 - Clause 31, page 24 (line 14)

13)
These items would amend clause 31 so that the Tribunal is no longer
required to revoke a road safety remuneration order after reviewing
the order and before the expiry date. Under clause 31, the Tribunal
will already be required to either re-make the same order with a
new expiry date, make a new road safety remuneration order or not
replace the expired order.

Amendment 20 - Clause 32, page 25
(lines 8 to 10)

Amendment
21 - Clause 32, page 25 (line 11)

14)
These items would amend clause 32 to allow all registered
organisations, and not just registered employee associations, to
apply for a variation of a road safety remuneration order on behalf
of its members.

Amendment
22 - Heading to Part 3, page 26 (lines 1 to 3)

15)
This item would substitute a new heading to Part 3. This
reflects that approvals of road transport collective agreements
will replace safe remuneration approvals.

16)
The Bill as introduced would have required the Tribunal to provide
safe remuneration approvals in respect of road transport collective
agreements. In effect this would have meant that the Tribunal
would only have approved those parts of a road transport collective
agreement that contained provisions about remuneration and related
conditions. This amendment and related amendments in items
23, 25, 27-28, 30, 32-35, 37-39 41-45 clarify the Tribunal’s
role in approving road transport collective agreements by requiring
the Tribunal to have regard to the entire road transport collective
agreement when considering whether or not to approve the
agreement. The Tribunal may also have regard to whether the
benefit of approving the agreement would outweigh the detriment to
the public constituted by any lessening of competition that would
or could result if the agreement were approved.

Amendment
23 - Clause
32A, page 26 (before line 5)

17)
This item would insert new clause 32A which relates to the power to
approve road transport collective agreements.

18)
New subclause 32A(1) provides that the Tribunal may approve a road
transport collective agreement under this Part. Subclause
32A(2) provides that in deciding whether to approve a road
transport collective agreement, the Tribunal may have regard to
competition policy issues.

20)
New subclause 33(1) defines a road transport collective agreement
for the purposes of Part 3 as an agreement between certain
contractor drivers and the hirer or potential hirer of the drivers
that meets certain content requirements. Significantly, the
agreement must specify the basis on which the participating drivers
who have entered into the agreement became part of the group.
This will enable the Tribunal to determine whether the group of
drivers was fairly chosen and are genuinely representative of the
drivers with whom the participating hirer will contract. A
note alerts the reader that if the Tribunal approves the agreement,
its effect is not limited to participating drivers and refers the
reader to clause 36.

21)
New subclause 33(2) clarifies that collective agreements entered
into by contract drivers under certain State laws that regulate
contract drivers are not road transport agreements for the purposes
of this Act. This is consistent with clause 10 of the
Bill that provides for the concurrent operation of those State
Acts. Contract drivers in New South Wales, Victoria and
Western Australia will continue to be able to bargain for and enter
into agreements under the laws in place in those States as well as
under the provisions in this Bill (if they are within its
constitutional scope).

22)
New subclauses 33(3)-(5) provide that the regulations may prescribe
a code of conduct to facilitate the effective and efficient
collective bargaining for road transport collective agreements.
The code of conduct must be developed in consultation with
the road transport industry and the Tribunal. Participating
hirers and drivers are required to conduct themselves in accordance
with any prescribed code of conduct - see item
26.

23)
Subclause 33(4) provides that despite any other law of the
Commonwealth, a State or a Territory, a road transport collective
agreement (other than a collective agreement entered into by
contract drivers under a specified State law) has no effect unless
it is an approved road transport collective agreement.

25)
This item would insert a new paragraph (ca) in clause 34 which will
require the Tribunal to be satisfied that the participating hirer
and the participating drivers have conducted themselves in
accordance with any prescribed code of conduct before approving
a road transport collective agreement.

26)
These items would make various technical amendments to clause 35 to
reflect that approvals of road transport collective agreements will
replace safe remuneration approvals and the use of the term
‘contractor driver’ to replace ‘road transport
drivers’.

Amendment
34 - Heading to clause 36, page 28 (line 1)

Amendment
35 - Clause 36, page 28 (lines 2 to 6)

Amendment
36 - Clause 36, page 28 (line 8)

Amendment 37
- Clause 36, page 28 (line 10)

27)
These items would make various technical amendments to clause 36 to
reflect that approvals of road transport collective agreements will
replace safe remuneration approvals and the use of the term
‘contractor driver’ to replace ‘road transport
drivers’.

28)
These items would make various technical amendments to clause 37 to
reflect that approvals of road transport collective agreements will
replace safe remuneration approvals and the use of the term
‘contractor driver’ to replace ‘road transport
drivers’.

Amendment
40 - After clause 37, page 28 (after line 22)

29)
This item would insert new clause 37A which provides for the
authorisation of certain conduct for the purposes of the
Competition and Consumer Act.

30)
Subsection 51(1) of the Competition and Consumer Act provides that
an Act can specify, and specifically authorise, conduct that would
otherwise contravene the restrictive trade practices provisions of
that Act.

31)
Subclause 37A(1) provides that for the purposes of subclause 51(1)
of the Competition and Consumer Act, and subject to the exclusion
in subclause 37A(4), anything done in accordance with an approved
road transport collective agreement by the participating driver, a
contractor driver (who is providing applicable services to the
participating hirer) or their representatives is specified in and
specifically authorised by this Act.

32)
Subclause 37A(2) provides that for the purposes of subclause 51(1)
of the Competition and Consumer Act, and subject to the exclusion
in subclause 37A(4), entry into an approval-pending road transport
collective agreement by a hirer or potential hirer of contractor
drivers and contractor drivers is specified in and specifically
authorised by this Act.

33)
Subclause 37A(3) provides that for the purposes of subsection 51(1)
of the Competition and Consumer Act, and subject to the exclusion
in subclause 37A(4), anything done by a hirer or potential
hirer, a contract driver or their representatives

in
preparation for, or incidental to, entry into an approval-pending
road transport collective agreement is specified in and
specifically authorised by this Act.

34)
Subclause 37A(4) limits the scope of the authorisations contained
in subclauses 37A(1)-(3) by providing that the following conduct is
not specifically authorised:

·
making a contract or arrangement, or arriving at an understanding,
that is or contains an exclusionary provision with the meaning of
section 4D of the Competition and Consumer Act; and

·
secondary boycotts as defined by reference to subsection 87AA(2) of
the Competition and Consumer Act.

35)
Clause 37A(5) provides for the meaning of
‘approval-pending.’

Amendment
41 - Heading to clause 38, page 28 (line 23)

Amendment
42 - Clause 38, page 28 (line 24)

Amendment
43 - Clause 38, page 28 (line 25)

Amendment
44 - Heading to clause 39, page 28 (lines 26 and
27)

Amendment
45 - Clause 39, page 28 (line 28)

36)
These items would make various technical amendments to clauses 38
and 39 to reflect that approvals of road transport collective
agreements will replace safe remuneration approvals.

37)
These amendments would introduce a time limit for applications to
have disputes about dismissals and contract terminations dealt with
by the Tribunal. An application must be made to the Tribunal
14 days after the dismissal took effect (for disputes between an
employee and their employer) or 28 days after the termination took
effect (for disputes between an employee and their former
employer).

38)
The Tribunal is able to allow a further period for the application
in exceptional circumstances, taking into account the matters
listed in clause 40A(2).

39)
The requirement for a time limit is to encourage employees and
contract drivers to promptly take disputes to the Tribunal and to
discourage disputes being taken to the Tribunal long after the
matter has occurred.

Amendment
48 - Heading to clause 42, page 30 (line 15)

Amendment
49 - Heading to subclause 42(1), page 30 (line
16)

Amendment
50 - Clause 42, page 30 (lines 17 and 18)

Amendment
51 - Heading to subclause 42(2), page 30 (line
23)

Amendment
52 - Clause 42, page 30 (lines 24 and 25)

40)
These items replace references to ‘independent contractor
road transport drivers’, ‘independent contractor’
and ‘road transport driver who is an independent
contractor’ with the defined term ‘contractor
driver’ - see amendments 4 and 6.

41)
These amendments would allow all registered organisations, and not
just registered employee associations, to apply for an order in
relation to a contravention or a proposed contravention of a civil
remedy provision if the organisation is entitled to represent the
interests of a person affected by the contravention or proposed
contravention.

Amendment
60 - Clause 61, page 41 (lines 4 and 5)

Amendment
61 - Clause 80, page 53 (line 19)

Amendment
63 - Clause 92, page 59 (lines 29 and 30)

Amendment
64 - Clause 117, page 71 (line 28)

42)
These items would make technical amendments to reflect that
approvals of road transport collective agreements will replace safe
remuneration approvals.

43)
These items would replace the references to ‘safe
remuneration approvals’, and the granting of safe
remuneration approvals, with references to ‘approved road
transport collective agreements’ and the approval of road
transport collective agreements. This reflects the proposed Part 3,
which replaces safe remuneration approvals with road transport
collective agreements.

Amendment
62 - Clause 80, page 53 (lines 26 and 27)

44)
This technical amendment clarifies that the Tribunal may also have
other functions conferred on it by regulations made under the Act
by another law of the Commonwealth.